The interpretation of disqualification criteria under Section 16(1)(xii) of the Orissa Municipal Act, 1950 and the impact of release under probation on eligibility for election.

JUDGMENT :

Sanju Panda, J. - In this writ application challenge has been made to the Order Dated 30.4.2009 passed by the Learned District Judge, Keonjhar in Election Petition No. 2 of 2008 declaring the Election of the Petitioner as Councilor of Ward No. 15 of Anandapur Municipality invalid.

2. The facts as narrated in the application are as follows:

In the Election held in September, 2008, the Petitioner has been elected from Ward No. 15 of Ananadpur Municipality securing the highest number of votes, i.e., 457, whereas the Opposite Party secured 387 votes. Challenging the said Election, the Opposite Party filed an application under Sections 18 & 33 of the Orisa Municipal Act, 1950 with a prayer to declare that the Petitioner was disqualified as a Councilor as he had not disclosed about the facts of G.R. Case Nos. 218 of 2000 & 95 of 2001 provided u/s 16(1)(xii) of the Orissa Municipal Act.

3. The Petitioner appeared in the said case & filed his showcause stating therein that he had disclosed about the facts of G.R. Case Nos. 312 of 2003 & 223 of 2004 but not disclosed about G.R. Case Nos. 95 of 2001 & 218 of 2000 as the said cases were not pending. In G.R. Case No. 95 of 2001 the Petitioner along with two others had been found guilty under Sections 323/383/506, IPC & directed to be released under Sections 4(1) & (3) of the Probation of Offenders Act for a period three years executing a bond of Rs. 5,000 without any surety. Also in G.R. Case No. 218 of 2000 the present Petitioner along with two others had been found guilty under Sections 323/34, IPC & sentenced to undergo simple imprisonment for six months & pay a fine of Rs. 500, in default, to undergo simple imprisonment for 15 days. The said order of conviction is a subject matter of Appeal in Criminal Appeal No. 19 of 2008 & the Petitioner has obtained an interim stay in the said appeal. With the bona fide impression the Petitioner could not disclose about those two cases as those were no more pending as G.R. Cases. Basing thereupon, the Tribunal formulated five issues. In support of their pleas, both the parties adduced oral as well as documentary evidence. After analyzing the evidence, the Tribunal came to the finding that the present Petitioner had concealed the fact of his conviction in the criminal cases & having held so, declared him as disqualified on the ground that the Election to the office of Councilor in Ward No. 15 of Anandapur Municipality was materially affected by deliberate suppression of the fact of his conviction by the Petitioner in his affidavit.

4. Learned Counsel for the Petitioner submitted that as per Section 16(1)(xii) of the Orissa Municipal Act, 1950 a person can be held to be disqualified for Election if he has been sentenced by a Criminal Court to transportation or to imprisonment for a period of more than six months for any offence. Since, the sentence against the Petitioner is only six months the said Section is not attracted. He further submitted that since the Petitioner has been convicted for six months which is not exceeding six months, he cannot be said to have incurred the liability of disqualification as enumerated in Section 16(1)(xii) of the Orissa Municipal Act. He also submitted that the order of conviction in G.P. Case No. 95 of 2000 was no more pending against him as he along with two others had been released u/s 4(1) & (3) of the Probation of Offenders Act. Therefore, the non-disclosure of the above two G.R. Cases cannot be a ground to declare the E'ection invalid in absence of any statutory provision contained in the Orissa Municipal Act. Hence, the impugned order is liable to be set aside.

5. Learned Counsel for the Opposite Party submitted that the Petitioner suppressed the order of his conviction in G.R. Case Nos. 218 of 2000 & 95 of 2001 & deliberately suppressed the said fact with the apprehension that disclosure thereof would affect the result of the Election. He also submitted that considering the materials available on recor